Definition and Significance of Service by Attorney
Service by attorney is a procedure regulated under German civil procedural law, whereby written communications from an attorney to the opposing party’s counsel are not delivered directly by the court, but instead directly by the attorneys involved. This procedure is anchored in the Code of Civil Procedure (ZPO) and serves to accelerate and simplify court correspondence between litigating parties. Service by attorney is closely associated with legal representation in civil proceedings and is mandatory for certain types of proceedings.
Legal Basis of Service by Attorney
Code of Civil Procedure (ZPO)
The legal framework for service by attorney is found in particular in Sections 195, 166 (2), and 172 ZPO. Pursuant to Section 195 ZPO, service in attorney-led proceedings may occur through an attorney involved to the opposing counsel as soon as party service is possible. Section 172 ZPO stipulates that, in the event of legal representation, service must be addressed to the attorney of record.
Scope of Application
Service by attorney regularly occurs in proceedings in which the parties are required to be represented by an attorney (so-called party representation, Section 78 ZPO). In these cases, service of written pleadings between the parties’ representatives takes place without court involvement. In proceedings where representation by an attorney is not mandatory, service by attorney is not permitted.
Process for Service by Attorney
Requirements
Service by attorney is permissible if both parties are represented by a licensed attorney of record and both are subject to attorney-led proceedings. It is also required that the document to be served is one listed in Section 195 ZPO, which must be transmitted to the opposing party, such as the filing of a lawsuit, an extension of claim, or submission of a statement of grounds for appeal.
Form and Procedure
Transmission of the Document
The serving attorney sends the document to opposing counsel, as a rule by letter, fax, or via the Electronic Court and Administrative Mailbox (beA). Proper and verifiable transmission of the documents must be ensured.
Proof of Service
Proof of successful service by attorney is provided by submitting a certificate of service or an acknowledgment of receipt in accordance with Section 174 ZPO. The acknowledgment of receipt is a written confirmation by the receiving attorney of the receipt of the relevant document.
Special Features of Service by Attorney
Services by attorneys are not formal service by the court, but constitute independent acts of service by the parties. This distinguishes them significantly from service by the court.
Calculation of Deadlines
With effective service of a document through service by attorney, the relevant statutory deadline begins to run. Compliance with deadlines therefore depends on the verifiable receipt by opposing counsel.
Exclusion of Service by Attorney
Certain documents, such as judgments or court orders, and certain procedural acts must be served exclusively by the court. The court service procedure is prescribed for the delivery of such documents.
Legal Consequences and Significance of Service by Attorney
Effect of Service
Proper service by an attorney has the same effects as formal service by a court or public official. Service triggers procedural deadlines and is binding in proceedings for the receipt of material documents.
Defective Service by Attorney
If mistakes occur in service by attorney, for example in providing proof of service or addressing the document, there is a risk of missing deadlines or the invalidity of certain procedural acts. Proper documentation and record-keeping are therefore particularly important.
Service by Attorney in Different Court Proceedings
Civil Proceedings
In civil litigation, service by attorney is the standard means of service between parties who are legally represented. It relieves the court procedure and accelerates written communications.
Family Matters and Non-Contentious Jurisdiction
Service by attorney is also used in non-contentious proceedings and in some family matters. Its application, however, always depends on statutory requirements.
Exceptions in Other Types of Proceedings
In criminal proceedings, administrative fine proceedings, or administrative court proceedings, service by attorney in this specific form is not provided for, as other procedural rules and methods of service apply in those cases.
Technological Developments and Electronic Service by Attorney
With the introduction of the special electronic mailbox for attorneys (beA), service by attorney has become increasingly digitalized. Transmission and proof of service (electronic acknowledgment of receipt) now occur via beA. However, the legal requirements for documentation and compliance with deadlines remain unchanged.
Summary and Practical Significance
Service by attorney is an efficient and legally secure instrument in civil procedure that conserves court resources and enables matters to be resolved more quickly. Correct application and documentation are crucial for the validity of service and the associated procedural effects. Continuing digitalization and use of the electronic mailbox modernize service by attorney without changing its legal underpinnings.References and Further Regulations:
- Code of Civil Procedure (ZPO): especially Sections 166, 172, 174, 195
- Courts Constitution Act (GVG): Provisions on attorney-led proceedings
- beA: Explanations on the electronic mailbox for attorneys on the official websites of the Federal Bar Association
Related Terms: Party service, acknowledgment of receipt, calculation of deadlines, civil procedure, court service
Frequently Asked Questions
What requirements must be met for effective service by attorney?
For service by attorney to be effective under German law, numerous formal and substantive requirements must be observed. Pursuant to Sections 195, 195 ZPO (Code of Civil Procedure) and other special provisions, the transmission of a document must be carried out by an attorney for one party to the opposing attorney. Both parties must be represented by counsel, which is mandatory in proceedings before the Regional Court, Higher Regional Court, and the Federal Court of Justice (so-called attorney process). Service is often carried out by fax, beA (special electronic mailbox for attorneys), or by post, provided the required forms and certifications are used. The serving attorney must carefully check whether the opposing party is correctly designated and whether there is a genuine need for service, e.g., in view of compliance with deadlines or procedural actions. Proper documentation of service, for instance by acknowledgment of receipt, is essential to serve as proof.
What effects does service by attorney have in civil proceedings?
Service by attorney constitutes formal notification of a document to the opposing party, represented by their attorney. It takes effect upon receipt in the files of the attorney authorized to receive service, which is especially important for deadlines and the commencement of time limits for appeals. Effective service by attorney replaces court service, so the court no longer needs to carry out its own service. For example, it can be used for service of pleadings, preservation of deadlines, proof of receipt of a written document, or for procedural actions such as filing appeals. A document duly served in this manner is regarded as received by the party once it reaches their attorney.
What special features must be considered for service by attorney via beA?
With the introduction of the special electronic mailbox for attorneys (beA), the requirements for service by attorney and particularly for documentation of receipt have changed significantly. Service via beA requires that both the sending and receiving attorneys have an activated beA and have not expressly refused receipt. Furthermore, service must be confirmed by a qualified electronic signature to ensure legal certainty regarding the sender’s identity. The “certificate of service” is generated electronically. Technical problems may not lead to delayed service; the sending attorney is responsible for ensuring the document is verifiably and timely received in the recipient’s beA mailbox. In addition, all transmitted documents must comply with the applicable file formats and security standards.
How is receipt of served documents verified?
Receipt of a document in the context of service by attorney is usually proven with an acknowledgment of receipt (EB) in accordance with Section 174 ZPO. This acknowledgment of receipt must be completed, signed, and promptly returned to the sender by the receiving attorney. In electronic legal practice, the EB is transmitted as an electronic form and also electronically signed. If an EB is missing or delayed, the court may review the validity of service based on the records and may order formal service if necessary. In case of doubt, the sender, as an attorney, is obliged to document proper service and receipt in another way to avoid forfeiting procedural rights.
What happens if service by attorney is defective or invalid?
A defective or invalid service by attorney can have significant procedural consequences, especially regarding legal deadlines. For instance, ineffective service does not trigger the commencement of time limits required for the filing of appeals or procedural actions. Typical sources of error include service to an attorney no longer authorized, formal defects in transmission, missing or incorrect acknowledgment of receipt, as well as omissions regarding electronic format requirements in beA. If such an error is identified, service must, if necessary, be repeated, in which case it is individually examined whether the defect can be cured. In principle, the error remains consequential until remedied, making all resulting legal acts subject to challenge.
Which documents can be effectively served by attorney?
In principle, all documents relevant to proceedings can be served by attorney, provided the law does not require formal service by the court. This includes in particular statements of claim, pleadings, responses, applications, notices of appeal and grounds of appeal, as well as other declarations and proofs required in civil proceedings. By contrast, documents for which formal service ex officio is prescribed (such as court decisions, orders or summons) are excluded. The effectiveness of service, however, requires that both parties and their attorneys remain fully authorized for court appearances and that no unauthorized third parties are involved in the transmission.
In which cases is service by attorney preferable to court service?
Service by attorney is particularly advantageous over court service where quick preservation of deadlines is required or where service should be accelerated for reasons of procedural economy. It requires less administrative effort, saves court resources, and allows for direct communication between the parties’ attorneys. In negotiation situations and complex multi-party proceedings, service by attorney can be an efficient way to securely and promptly deliver documents, for example, when requesting an extension of a deadline or delivering supplementary pleadings shortly before oral hearings. Service by attorney is also frequently chosen when changes in the factual or legal situation require an immediate response, provided there are no statutory obstacles.
